Note: It’s Not Popular but it Sure is Right: The (In)admissibility of Statements Made Pursuant to Sexual Offender Treatment Programs

Sex offenders are not a sympathetic bunch.  Throughout American history, society has imposed on sexual offenders a variety of punishments, from incarceration[1] to castration.[2]  In recent years, in response to public pressure following several heinous and highly publicized sexual crimes against children, the punishments imposed upon sexual offenders have increased.[3]  Many jurisdictions have enacted laws allowing for the indefinite civil confinement of sexual offenders, while others offer surgical castration or require offenders to submit to polygraph[4] or penile plethysmograph tests.[5]  Furthermore, both the federal government and many states offer or mandate sexual offender treatment programs which may employ some of the above-mentioned methods of punishment, often with the ultimate goal of rehabilitating the offender.

In deciding the appropriate and just punishment for sexual offenders, society and its elected representatives have struggled to reconcile the tension between the very real threat sexual offenders pose to America and its children, and upholding the basic rights afforded all criminal defendants under the Constitution.  While recent conversations surrounding the rights of individuals convicted of sexual offenses have focused on civil confinement,[6] this is not the only punishment practice that implicates the constitutional rights of sexual offenders.  The rights of such offenders are also affected by what are commonly known as “sex offender treatment programs” (SOTPs).  These programs, administered by the government, are voluntary at the federal level, and may be voluntary or mandatory at the state level.  The majority of SOTPs employ a cognitive behavior therapy model and commonly require participants to admit to all past sexual offenses—charged or uncharged, convicted or not convicted—in order to successfully complete the program.

To this end, the programs are laudable.  Based on scientific research showing the efficacy of cognitive-based therapy where the patient takes responsibility for his own wrongdoing, the required admissions to past sexual offenses seem a logical, and indeed necessary, component of rehabilitation.  However, the programs are also problematic, implicating participants’ constitutional rights because statements made during the course of SOTPs can be used as propensity or character evidence in a pending prosecution for a sexual offense, or as the basis for new charges in a subsequent prosecution.

Take John Doe for example.[7]  He was arrested for a sexual molestation offense for the first time in 1982.  In the years that followed, Doe was in and out of prison for a variety of sexual offenses.  Following his last stint in federal prison on child pornography charges, Doe was ordered to participate in a SOTP as a condition of supervised release.  The SOTP required Doe to author an autobiography detailing all sexual abuse that he had suffered and all that he had perpetrated.  Doe did so, providing a detailed written account of each of his victims over the past three decades.  Shortly thereafter, Doe was released from prison.  A few months later, Doe violated the terms of his supervised release by distributing child pornography via the internet.  When police searched Doe’s house, they found a copy of the autobiography and other materials Doe wrote in the course of the SOTP.

At trial, the government seeks to introduce Doe’s autobiography and the other written statements to show his propensity to commit sexual offenses.  The government is also considering bringing charges against Doe for the crimes he admitted tobut for which he was never charged.  At trial, the jury will hear about every single incident of sexual misconduct Doe has ever engaged in because they will have full access to Doe’s private writings—the very writings that the government told him he must produce as a term of his supervised release.

This paper will explore the admissibility of such statements against individuals like Doe who make statements detailing prior sexual offenses, charged or uncharged, in the course of their participation in a government-run SOTP.  Part I will provide a brief overview of federal and state SOTPs and discuss the judicial proceedings in which such statements might be admitted.  Part II will explore the admissibility of SOTP statements under the Federal Rules of Evidence (FRE) and the constitutionality of such under the Fifth Amendment.  Finally, Part III will argue that notwithstanding the evidentiary and constitutional bases for admitting these statements, there are alternative and more compelling evidentiary, constitutional, and policy arguments for not admitting them.  First, many of these statements should be protected from compelled disclosure by the therapist-patient privilege.  Second, the probative value of such statements does not outweigh the prejudicial effect, and thus the statements should be deemed inadmissible under FRE 403.  Finally, such statements violate the Sixth Amendment right to counsel and should be excluded where a defendant is not advised by counsel of the risk of being compelled to make such statements at the time he accepts a guilty plea requiring participation in a SOTP, or where a defendant is sentenced to participate in such a program as part of sentencing, supervised release, or parole.

Ultimately, I argue that it is simply good social policy to exclude statements made during the course of SOTPs. Failure to do so may deter individuals from participating in SOTPs in the first place and prevent offenders from receiving treatment that is critical to decreasing recidivism and to protecting America’s children from sexual crimes.  The solution, I conclude, is to offer a limited “use immunity”[8] to SOTP participants, prohibiting such statements from being used in a search warrant application or as the basis for a subsequent prosecution for crimes admitted to in the statements.

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Meghan Gilligan: J.D. Candidate, Syracuse University College of Law, 2012; B.A. English and Political Science, magna cum laude, University of Rochester.

[1]. Facts About Adult Sex Offenders, Association for the Treatment of Sexual Abusers, (last visited Oct. 11, 2011).

[2]. See Anti-Androgen Therapy and Surgical Castration, Association for the Treatment of Sexual Abusers, (last visited Oct. 22, 2011).

[3]. Jean Peters-Baker, Challenging Traditional Notions of Managing Sex Offenders: Prognosis is Lifetime Management, 66 UMKC L. Rev. 629, 631 (1998).

[4]. See id. at 662 (noting that “[t]he polygraph is one method of measuring a sex offender’s level of risk to the community in a laboratory setting” and is frequently used “to determine the offender’s normal and deviant sexual histories”); see also Mary West et al., Offender Treatment Programs, August 2000: 50 State Survey, Colo. Dep’t of Corrections 20 (Aug. 2000),  Thirteen states reported using polygraph tests to assess sex offenders’ progress in treatment programs, including Colorado, Hawaii, Indiana, Iowa, Kansas, Massachusetts, Minnesota, New Hampshire, Tennessee, Texas, Vermont, Virginia, and Wisconsin.  Id.  Other states stated an intent to implement the use of polygraphs in the near future, and several more reported the discretionary use of polygraphs, or the use of polygraphs in post-release supervision.  Id.

[5]. See Peters-Baker, supra note 4, at 663 (explaining that penile plethysmographs are devices used to measure the response of an individual’s penis to audio or visual stimuli); see also Fed. Bureau of Prisons, Sex Offender Treatment Program (2002), available at (“[a]ll participants will undergo plethysmograph and polygraph examination”).

[6]. See generally, e.g., United States v. Comstock, 130 S. Ct. 1949 (2010).

[7]. “John Doe” is not based on a real individual but is instead exemplary, used to illustrate a plausible scenario based on existing SOTP practices and case law concerning prosecutions for sexual offenses.

[8]. Dissenting in McKune v. Lile, Justice John Paul Stevens coined the term “use immunity” with regard to statements made pursuant to a SOTP.  536 U.S. 24, 70 (Stevens, J., dissenting).

Article: The Influence of International Human Trafficking on United States Prostitution Laws: The Case of Expungement Laws

When the issue of human trafficking first gained widespread public attention in the United States in the 1990s, the discussion centered on international human trafficking.  In 2000, the United States passed an anti-trafficking law, popularly called the Trafficking Victims Protection Act (TVPA), and the United Nations adopted an anti-trafficking treaty called the Palermo Protocol.  Both the TVPA and the Palermo Protocol focused on combating international human trafficking by encouraging countries around the world to pass laws against trafficking and prosecute traffickers.  Meanwhile, in the United States, state-level criminal justice systems treated United States citizens qualifying under the federal definition of “human trafficking victim” as criminals by prosecuting them for prostitution.  Activists for sexually exploited women and girls in the United States noted the irony that the United States was so concerned about trafficking in other countries, but was neglecting trafficking of its own citizens.  The United States was allowing laws and practices in the states that it was condemning in other nations.  For example, federal law requires other countries to ensure that victims of trafficking are not inappropriately incarcerated for unlawful acts as a direct result of being trafficked.[1]  Yet many states lack laws ensuring that sex trafficking victims are not prosecuted for prostitution.  As a result, anti-trafficking activists have put pressure on Congress and state legislatures to apply the same legal standards used in an international context to sexually exploited women and girls in the United States.  They are leveraging the international human trafficking legal framework to push for legal change to state laws on prostitution.

This essay will begin with an explanation of the legal framework for addressing international human trafficking, including the definitions of trafficking and the laws and policies developed to eradicate human trafficking.  Then the essay will describe how this framework has come to influence state laws in the United States, focusing in particular on the recent trend of laws allowing for the expungement of prostitution convictions if the defendant can show that she was a victim of sex trafficking.  The essay will conclude by evaluating the effectiveness of this legal framework at both the international and domestic level.

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Carrie N. Baker is an Assistant Professor in the Program for the Study of Women and Gender at Smith College in Northampton, Massachusetts.  Baker holds a B.A. in Philosophy from Yale University and an M.A., J.D., and Ph.D. in Women’s Studies from Emory University.  Her work has been published in numerous law and women’s studies journals.  Her book, The Women’s Movement Against Sexual Harassment (Cambridge University Press, 2008), won the National Women’s Studies Association 2008 Sara A. Whaley book prize.

[1]. 22 U.S.C. § 7106(b)(2) (2006 & Supp. III 2010).

Article: The Limits of International Law: Efforts to Enforce Rulings of the International Court of Justice in U.S. Death Penality Cases

Since the Supreme Court reinstated the death penalty in 1976,[1] the United States has executed twenty-eight foreign nationals from fifteen different countries.[2]  Most of those foreign nationals were never informed of their rights to consular notification and access under Article 36 of the Vienna Convention on Consular Relations,[3] a treaty the United States ratified in 1969.[4]  Violations of Article 36 in capital cases have caused consternation in foreign capitals and endless litigation in domestic courts and international tribunals.  Mexico, which has the largest number of foreign nationals on death row,[5] established the Mexican Capital Legal Assistance Program in 2000 to assist its nationals facing the death penalty and to ensure that Vienna Convention claims were aggressively litigated.[6]  Several foreign governments have filed briefs in state and federal courts describing the nature of the assistance they could have provided if their nationals had been promptly notified of their consular rights.[7]  In dozens of cases, appellate lawyers have argued that consular assistance could have made the difference between life and death.  Yet, even in the wake of favorable judgments from the Inter-American Commission of Human Rights,[8] the Inter-American Court on Human Rights,[9] and the International Court of Justice (ICJ),[10] national courts have persistently refused to grant any measure of relief to condemned foreign nationals, even in cases in which the violation was undisputed.  As of September 2011, domestic courts have overturned death sentences on the basis of Article 36 violations in only two cases.[11]

In light of these statistics, it is tempting to conclude that Article 36 litigation has had negligible effects on the application of the death penalty in the United States.  And indeed, under no circumstances could even the most optimistic internationalist claim that Article 36 litigation has been a resounding success.  But it would be similarly misguided to say that Article 36 litigation has had no effect on domestic legal culture.  As an initial matter, the United States complied with the ICJ’s provisional measures order in Avena and Other Mexican Nationals,[12] leading to a five-year moratorium on the execution of Mexican nationals in the United States.[13]  In addition, the death sentences of two Mexican nationals were vacated in direct response to the ICJ’s final judgment in Avena; one of those cases is examined in greater detail below.  And finally, litigation over violations of the Vienna Convention in U.S. death penalty cases has attracted substantial public commentary calling on the courts and Congress to comply with their international obligations.  Although it is too soon to say whether the United States will ultimately comply with the ICJ’s Avena judgment in the cases of Mexican nationals who remain on death row, there can be little question that litigation in domestic and international tribunals has led to increased awareness of the United States’ obligations under the Vienna Convention, which in turn has led to greater compliance with Article 36 at the trial level.

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Sandra Babcock: Clinical Professor and Clinical Director, Center for International Human Rights, Northwestern University School of Law.  I was counsel for the government of Mexico in Avena and Other Mexican Nationals, and subsequently represented Mexican nationals Osbaldo Torres, José Medellín, Roberto Moreno Ramos, and Humberto Leal García.  I witnessed many of the events described in this essay, and could not fairly be described as an objective observer.  Nonetheless, my involvement in the litigation described herein allows for a more nuanced perspective on both the successes and failures associated with our attempts to obtain legal remedies for foreign nationals whose consular rights were violated.

[1]. Gregg v. Georgia, 428 U.S. 153, 187, 207 (1976).

[2]. Confirmed Foreign Nationals Executed Since 1976, Death Penalty Info. Center, (last updated Oct. 2, 2011).

[3]. Id.; see generally Vienna Convention on Consular Relations, United Nations, Apr. 24, 1963, 21 U.S.T. 77.

[4]. Vienna Convention on Consular Relations, supra note 3, at 77 (entered into force Dec. 24, 1969).

[5]. Reported Foreign Nationals Under Sentence of Death in the U.S., Death Penalty Info. Center, (last updated Oct. 2, 2011).

[6]. Michael Fleishman, Reciprocity Unmasked: The Role of the Mexican Government in Defense of its Foreign Nationals in United States Death Penalty Cases, 20 Ariz. J. Int’l & Comp. L. 359, 393-94 (2003) (describing Mexico’s consular assistance in capital cases in Texas and elsewhere over the last several decades).

[7]. See, e.g., Paraguay v. Allen, 949 F. Supp. 1269, 1273 (E.D. Va. 1996); Complaint at ¶¶ 70, 76, United Mexican States v. Woods (D. Ariz. 1997) (No. CIV 97-1075-PHX SMM); see generally Brief of the Gov’t of the United Kingdom of Great Britain & N. Ireland as Amicus Curiae in Support of Petitioner-Appellant & Reversal, Carty v. Quarterman, 345 Fed. Appx. 897 (5th Cir. 2009) (No. 08-70049).

[8]. See, e.g., Martínez Villareal v. United States, Case 11,753, Inter-Am. Comm’n H.R., Report No. 52/02, OEA/Ser.L/V/II.117, doc. 1 rev. ¶ 64 (2003), available at

[9]. See The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser. A) No. 16, ¶¶ 121-22 (Oct. 1, 1999), available at

[10]. See Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J. 12, 71-72 (Mar. 31).

[11]. See Torres v. Oklahoma, 120 P.3d 1184, 1189-90 (Okla. Crim. App. 2005); Valdez v. Oklahoma, 46 P.3d 703, 709-11 (Okla. Crim. App. 2002).  In Valdez, the court’s decision to vacate the death sentence of Gerardo Valdez was based on its finding that trial counsel was ineffective for failing to contact the Mexican consulate and make use of the resources consular officers would have provided.  Valdez, 46 P.3d at 710.  Although the court found the petitioner’s Vienna Convention claim to be procedurally barred, the court’s decision to grant relief was based on its conclusion that the Mexican consulate would have provided extensive assistance if it had been notified of Valdez’s detention.  Id. at 709-10.  For that reason, I include it among the cases in which Vienna Convention claims have prevailed—although I recognize that others may quibble with this assessment.

[12]. Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures, 2003 I.C.J. 6 (Feb. 5).

[13]. See Confirmed Foreign Nationals Executed Since 1976, supra note 2.  After Mexico filed its application instituting proceedings in the ICJ in January 2003, no Mexican national whose case was addressed in the ICJ proceedings was executed until August 5, 2008, when Texas executed José Medellín Rojas.  Id.